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UN report strongly implies that NSA surveillance is violating international law

UN High Commissioner for Human Rights Navi Pillay
UN High Commissioner for Human Rights Navi Pillay
UN Geneva

A new report from the UN High Commissioner for Human Rights suggests that several policies of the Obama administration — and specifically the National Security Agency — may violate international human rights norms.

At one point the report, whose lead author is UN High Commissioner Navi Pillay, specifically mentions the NSA and its British partner, the General Communications Headquarters. In most cases, though, it describes policies in general terms that could apply to multiple countries' surveillance policies. Still, several of the policies she describes as legally problematic have been practiced and defended by the Obama administration in recent years.

Here are 5 points that seem like clear references to US policies.

1) Metadata surveillance can threaten privacy as much as collecting content

The Obama administration has argued that collecting metadata — such as information about when a phone call was made and to what number — does not raise the same privacy concerns as collecting the contents of a phone call or email. The high commissioner doesn't buy it.

"From the perspective of the right to privacy, this distinction is not persuasive," she writes. "The aggregation of information commonly referred to as 'metadata' may give an insight into an individual's behavior, social relationships, private preferences, and identity that go beyond even that conveyed by accessing the content of a private communication."

2) Sharing data among agencies is a threat to privacy

US law defining the limits of government snooping focuses on when the government is allowed to collect private information. Once the feds have your email or phone calls, there are few restrictions on what they can do with it. The Obama administration has aggressively exploited these lax rules. Information collected by the NSA is shared with the CIA, DEA, FBI, and other agencies. The high commissioner argues that this kind of data sharing erodes privacy rights.

"Surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another," it argues. "When combined with the greater ease with which national security and law enforcement gain access to private-sector data in the first place, the expanding freedom to share that information among agencies and use it for purposes beyond those for which it was collected represents a substantial weakening of traditional data protections."

3) Secret rules and secret courts threaten human rights

When critics have argued that NSA programs lack sufficient oversight, the agency has responded by pointing to the Foreign Intelligence Surveillance Court, a secretive judicial body that has signed off on most NSA spying programs. But the UN report says that this kind of "oversight" isn't sufficient to protect peoples' rights.

The report argues that the law must be "accessible," which requires "not only that the law is published, but that it is sufficiently precise to enable the affected person to regulate his or her conduct." The laws governing surveillance must be publicly accessible and "provide for effective safeguards against abuse."

"Secret rules and secret interpretations — even secret judicial interpretations — of law do not have the necessary qualities of 'law,'" the report argues. "The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion."

4) Foreigners have privacy rights too

The Obama administration has argued that many US privacy laws only apply when the NSA targets the communications of Americans. The NSA has traditionally enjoyed a free hand to spy on people overseas. But the UN report argues that under the International Covenant on Civil and Political Rights, which the United States ratified in 1992, States (e.g. governments like the United States) must "respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State, even if not situated within the territory of the State. A State may not avoid its international human rights obligations by taking action outside its territory that it would be prohibited from taking 'at home.'"

The UN report notes that "several legal regimes distinguish between the obligations owed to nationals and those within a state's territories, and non-nationals and those outside, or otherwise provide foreign or external communications with lower levels of protection." But "international human rights law is explicit with regard to the principle of non-discrimination," the report concludes. The Convenant holds that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law."

This suggests that international law may prohibit the NSA from indiscriminate spying on foreigners.

5) Drone strikes raise "grave concerns"

As Obama has scaled back US involvement in Iraq and Afghanistan, he has relied more heavily than his predecessors on drone strikes against suspected terrorists. The use of drone strikes comes in for criticism in the report.

"Reports indicate that metadata derived from electronic surveillance have been analyzed to identify the location of targets for lethal drone strikes," the report says. "Such strikes continue to raise grave concerns over compliance with international human rights law and humanitarian law."